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Immigration Update: Proposed Federal Regulations Could Bring Major Changes

October 11, 2018

 At the start of the program year, we updated you on our new Immigration-Related Principles produced by a Working Group over the summer. Since that time, the Boston Bar Foundation (BBF) has funded the translation of those principles, and we’ve continued to monitor developments. In recent weeks, we’ve been taking a closer look at two new proposed federal regulations related to immigration policy that are currently up for public comment in the federal register. As you know, we regularly facilitate the submission of comments on local proposed court rules but weigh in on federal proposals less often. Keep reading to learn more about the proposed immigration regulations that we’re taking a closer look at, and how you can participate in the public comment process on proposed federal rules.

Regulation related to the Flores Settlement Agreement  

On September 7, the Department of Homeland Security (DHS) and the Department of Health and Human Services (HHS) issued a notice of proposed rulemaking to amend the regulations related to the apprehension, processing, care, custody, and release of undocumented juveniles, which would end the existing Flores Settlement Agreement (FSA). The FSA was established in 1997 as a result of the case Flores v. Reno, a class action lawsuit filed on behalf of unaccompanied immigrant children, challenging the policies that concerned the conditions that children and youth experienced during immigration-related custody and release. The Agreement offered a number of protections for unaccompanied minors, including a general policy favoring release from detention and family reunification, detention in the least restrictive setting appropriate to the age and special needs of the children when required, access to human conditions, notice of legal rights, and the right to a bond hearing.

Since its establishment, the counsel for plaintiffs in the Flores matter have intervened on several occasions to ensure compliance with the terms of the agreement, including in relation to prolonged detention, lack of access to bond hearings, and poor detention conditions. The government has also regularly sought to avoid or change the protections in the FSA, resulting in a few developments of note in recent years. First, in 2016, the court extended the agreement to apply not only to unaccompanied children but also to migrant families. This particular matter came to public attention again when the Administration implemented its zero-tolerance policy and began separating families at the border this past summer. As part of this, the Department of Justice filed a request to modify the FSA, asking for limited emergency relief so that Immigration and Customs Enforcement (ICE) could detain undocumented minors who arrived with their parent or guardian in ICE family residential facilities, and exempt ICE family residential facilities from the Agreement’s state licensure requirement. Judge Gee denied the request, saying that it was “a thinly-veiled motion for reconsideration without any meaningful effort to comply with the requirements…”

Originally set to sunset in 2003, the Government thereafter stipulated to continue the FSA until it published regulations implementing it, which is what the currently proposed regulations are meant to do. DHS and HHS provide that the regulations would ““satisfy the basic purpose of the FSA in ensuring that all juveniles in the government’s custody are treated with dignity, respect, and special concern for their particular vulnerability as minors.”

Though the regulations are meant to implement the FSA, they would significantly alter many of the current policies in place, a number of which have elicited concern from groups like the American Immigration Lawyers Association (AILA), the American Immigration Council, and the National Immigrant Justice Center.

Significant changes proposed in the regulations include provisions that allow the government continually reassess a child’s status as an unaccompanied immigrant child even in the middle of a case, potentially resulting in the loss of certain benefits like the opportunity to present their asylum claims in a non-adversarial setting; provisions that restrict release options to only a parent or legal guardian (not in detention); provisions that remove the current option in the FSA that also allows for release to an adult relative (brother, sister, aunt, uncle, or grandparent); provisions that overturn the right to a bond hearing guaranteed by the FSA and replace it with a new administrative procedure for custody determinations for unaccompanied children, creating an HHS-led hearing process, where an HHS officer determines whether the child poses a danger to the community or a flight risk; and provisions that lower the protections offered to minors during their time in Customs and Border Processing, including allowing for the consideration of “operational feasibility” when determining whether a child can contact accompanying family members and allowing DHS to house unaccompanied children with unrelated adults for more than 24 hours in emergencies or “exigent circumstances.

One of the main changes relates to the requirements currently provided in the FSA that place a 20-day limit in detaining families in immigration detention centers, after which they must be released unless they opt by choice to stay in. The proposed rule would end this 20-day limit by removing the current state-licensing requirement for facilities that will hold immigrant minors, which in practice would mean that detained families could be held indefinitely. This has also raised concern that detention conditions will deteriorate as the government will be in charge of its own oversight. You can read more about the BBA’s recent efforts on family separation here and here, and to learn more about the FSA nad the proposed rules, visit this AILA page.

Regulation related to Public Charge Determinations

Just this week, U.S. Citizenship and Immigration Services (USCIS) published a long-anticipated proposed rule change related to public charge determinations for immigration purposes. Public charge determinations have been a part of federal immigration law for over a century, and if the government finds that an individual is likely to become a “public charge,” it can deny a person admission to the U.S. or lawful permanent residence (or “green card” status). Currently, the government identifies those who may depend on the government as their main source of support as a public charge, and the only benefits that can be considered are cash assistance and government-funded institutional long-term care.

Under the proposed new rule, the government would weigh a range of factors to determine whether a person is likely to use certain public benefits in the future, including, in addition to cash assistance, federal housing benefits (like Section 8), Supplemental Nutrition Assistance Program ( like SNAP, formerly food stamps), Medicaid (with a few exceptions for emergency conditions) and some Medicare subsidies. In addition, the government will consider the following negatively in making public charge decisions: earning less than 125% of the federal poverty level (FPL), being a child or a senior, having certain health conditions, limited English ability, less than a high school education, a poor credit history, and other factors. The proposed rule also considers whether an applicant sought or obtained a fee waiver in applying for an immigration benefit.

Certain immigrant groups are not subject to the determination, including refugees, asylees, and survivors of domestic violence. However, the proposal also extends a similar test to bar extensions of non-immigrant visas and changes of non-immigrant status, like when an individual wants to move from a student visa to an employment visa.

A coalition called Protecting Immigrant Families is leading the charge on analyzing the proposal and facilitating the submission of comments. They’ve compiled a lengthy list of continually-updated resources, which can be viewed here. Various sections here at the BBA are currently considering the impacts of the proposed rule in their practice area and for their clients, and we’ll keep you posted on how you can join the Sections in this effort.

Federal Comment Process

As mentioned, interested members of the public are given a period of time to comment on the proposed regulations once they are published in the federal register, in both instances here, 60 days. Comments must be considered by the agency, and when agencies publish final regulations in the Federal Register, they must address the significant issues raised in the comments and discuss any changes made in response to them.

There are plenty of ways these comments can be submitted, the easiest of which, and the method preferred by most agencies, is submission of comments through the government’s online portal. A few things are worth keeping in mind when deciding what your comments should say. To the extent possible, it’s best to produce comments that are substantive, detailed, and unique to you. This matters because, as mentioned, the agencies proposing the rules must consider and respond to the unique comments when deciding on the final rule, and failure to do so can become a factor in any future litigation related to the rule.  As a result, the more unique and specific comments received, the more fully the agency will have to respond to each concern.

To comment on the Flores Settlement Agreement Regulation, visit this page and to comment on the Public Charge regulations visit the microsite on this page, or the Protecting Immigrant Families Site.  Comments on the proposed Flores regulation are due on November 6 while comments on the proposed public charge regulations are due on December 10. If you want a full briefing on the federal rulemaking process, check out this document.

Stay tuned for more ways that you can be involved in the comment process on these and other matters!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association